Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2355-RPM LEONID DMITRUK, Administrator of the Estate of Alexander Bugaychuk, deceased, and YELENA BUGAYCHUK, an individual, and NATALIA MELNIK an individual, and IRINA MOROZOV, personally and as administrator of the Estate of Yevgeniy Morozov, deceased, and as Guardian for SARA MOROZOV, a minor, and ELEANNA MOROZOV, a minor, Plaintiffs, v. GEORGE AND SONS' REPAIR SHOP, INC, a Colorado corporation, d.b.a. "George's Towing", GEORGE ROSLER, a resident of the State of Colorado. Defendants. ______________________________________________________________________________ DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT ______________________________________________________________________________ COME NOW the Defendants George and Sons' Repair Shop, Inc., d.b.a. George's Towing, and George Rosler, by and through their attorney, Andrew J. Carafelli of the law firm of Hall & Evans, L.L.C., and hereby file their Response in Opposition to Plaintiffs' Motion for Leave to Amend Complaint as follows: INTRODUCTION This case arises from an automobile accident which occurred on November 26, 2001 on Interstate 70 near the town of Limon, Colorado. For some inexplicable reason, at approximately 10:00 a.m. on that morning, the decedent Yevgeniy Morozov who was driving a Budget

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Rent-A-Car System's rental van drove into the back of a semi-truck owned by Angel Express which was partially parked in the exit lane and on the shoulder of Interstate 70. At the time of the accident the weather was clear and there was nothing obstructing Mr. Morozov's view. Earlier that morning the Angel Express semi-truck had become stuck in a snow bank along Interstate 70. The Angel Express driver called the police who in turn called a local towing company, George's Towing, to pull the truck from the snow. After pulling the Angel Express truck free from the snow and detaching, George Rosler of George's Towing suggested that the Angel Express driver and he drive to a nearby exit for the purpose of settling the small tow bill. The driver of the Angel Express truck, Jorge Lage, agreed. Both vehicles then moved under their own power to Exit 348 off Interstate 70. At no time did George Rosler order or otherwise require the Angel Express truck to follow him to the exit. Nor did he provide the Angel Express truck driver with any type of instructions as to where to park near the exit. Rather, the Angel Express driver, on his own, pulled up behind the George's Towing vehicle at the exit ramp. At that time both George and Sons' Towing vehicle and the Angel Express truck had their emergency flashers on. A State Trooper passed the two clearly visible trucks on the side of the road shortly after the trucks had stopped and shortly before the accident. He did not take exception to their positions on the exit ramp. Within minutes after stopping, Mr. Morozov ran into the backend of the Angel Express semi-truck. Mr. Morozov was killed instantly and his passenger later died in the hospital. STATEMENT OF FACTS In their Motion for Leave to Amend, Plaintiffs have set forth various "facts" which they allege support their Motion for Leave to Amend to include a claim for punitive damages. However, conspicuously absent from several of the alleged "facts" are citations to any authority. For example, As a result,

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on page 2 of Plaintiffs' Motion, Plaintiffs state as follows in paragraph 3 thereof: "As directed or suggested by Rosler, Lage pulled to a stop behind Rosler." Plaintiffs cite to absolutely no authority to support this allegation. Rather, the undisputed evidence obtained during the course of

Mr. Rosler's deposition showed that at no time did Rosler force, tell, request or instruct the Angel Express driver where to park when the trucks arrived at the exit. See, Exhibit 1 to Plaintiffs' Motion for Leave to Amend, p.21, l.25; p.22, ll. 1-12. Similarly, on page 3 of Plaintiffs' Motion for Leave to Amend, Plaintiffs state: "While Rosler was waiting in the cab of his tow truck, a Budget rental vehicle driven by Morozov apparently did not realize the Rosler and Lage vehicles were actually stopped on the Interstate. There is no evidence that Morozov was doing anything other than property[sic] attempting to exit the highway at Exit 348.". Again, Plaintiffs cite to absolutely no authority for this proposition. Rather, this is nothing more than speculation on the part of Plaintiffs' counsel. Defendants submit the following "Undisputed Facts": 1. The truck which Rosler responded to was owned by Angel Express, Inc., a Florida

corporation, and was being driven by an individual by the name of Jorge Lage. See, Amended Complaint, ¶¶ 9-10. When Rosler arrived at the scene of the truck there was a State Patrol on the scene with his vehicle located behind the Angel Express truck with his flashing overhead lights on. Exhibit 1, deposition of George Rosler, p.13, ll.1-25; p.14, ll.1-2.1

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Defendants' citation to Rosler's deposition refers to Exhibit 1 to Plaintiffs' Motion for Leave to Amend in that Plaintiffs attached the entire deposition to their Motion. Defendants have used letters for the remaining Exhibits to their Response.

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2.

Rosler then spoke to Mr. Lage (who spoke english) who asked Rosler if Rosler

could pull him back onto the pavement. Exhibit 1, deposition of George Rosler, p.10, ll.8-25; p.11, ll.1-7. 3. After agreeing to do so, Rosler hooked his cable to the semi-truck, pulled the

wrecker forward, and pulled the semi-truck onto the pavement. At that point in time Rosler unhooked his tow truck from the Angel Express truck. Exhibit 1, deposition of George Rosler, p.11, ll.8-12; p.16, ll.20-22; Exhibit A, Washington State Complaint filed by Plaintiffs, ¶ 23. 4. Rosler and Mr. Lage then agreed to go to the next exit to take care of the bill for the

towing. The exit was approximately one mile away from the point where Rosler had pulled the truck onto the pavement. Exhibit 1, deposition of George Rosler, p.15, ll.4-12. 5. Rosler was only on the scene approximately five minutes before both trucks moved

under their own power to the next exit, approximately a mile away. Id., p.15, ll.23-25; p.16, ll.1-9; Exhibit A, Washington State Complaint filed by Plaintiffs, ¶ 24. 6. When the two trucks neared the exit they each pulled off (as far to the right as they

could get) without going off the pavement into the ditch. Exhibit 1, deposition of George Rosler, p.21, ll.10-15. 7. Nor did Rosler at any time force, tell, request or instruct the Angel Express driver

where to park when the trucks arrived at the exit. Exhibit 1, deposition of George Rosler, p.21, l.25; p.22, ll.1-12. 8. The Angel Express truck stopped approximately 10 feet behind Rosler's tow truck.

Id., p.23, ll.11-14.

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9.

Both trucks had their emergency flashers activated at the time they stopped by the

exit. Exhibit 1, deposition of George Rosler, p.58, ll.17-25; p.59, ll.1-2; p.67, ll.10-19; p.93, ll.4-6; Exhibit B, Affidavit of Sandra Graeff, Elbert County Deputy Coroner. 10. Prior to the collision neither Rosler nor the driver of the Angel Express truck placed

any type of warning triangles behind the Angel Express truck. Exhibit 1, deposition of George Rosler, p.38, ll.22-25; p.39, ll.1-2. 11. Shortly before the accident occurred State Patrol Trooper Jason Bandy passed the

two trucks stopped by the exit and had no problem seeing them as he passed. Exhibit C, deposition of Jason Bandy, p.6, ll.14-18; Exhibit D, Declaration of Trooper J.E. Bandy, ¶ 3. 12. Within minutes after the two trucks had stopped at the exit site, the van driven by

Yevgeniy Morozov struck the rear of the Angel Express truck. Exhibit 1, deposition of George Rosler, p.39, ll.22-24. 13. The visibility was clear at the time of the accident. Exhibit C, deposition of Trooper

Jason Bandy, p.6, ll.15-18; Exhibit 1, deposition of George Rosler, p.28, 11.5-17. PLAINTIFFS HAVE FAILED TO SHOW GOOD CAUSE EXIST FOR THE GRANTING OF THEIR MOTION FOR LEAVE TO AMEND THE COMPLAINT WHEN THE DEADLINE FOR AMENDING PLEADINGS WAS MORE THAN A YEAR AGO This Court issued the Scheduling Order herein on May 21, 2004. The Scheduling Order set the deadline for amendment of pleadings as June 28, 2004. Furthermore, the Scheduling Order set the discovery deadline as November 30, 2004. Defendants propounded their Initial Disclosures on May 19, 2004.

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The Plaintiffs did not file their Initial Disclosures in this matter until August 9, 2004. The Plaintiffs finally propounded written discovery to the Defendants on October 26, 2004, a mere month before the deadline for discovery. See, Exhibit E attached hereto. Despite knowing that the discovery deadline was November 30, 2004, the Plaintiffs did not take the deposition of George Rosler until November 23, 2004, a mere week before the end of discovery. Plaintiffs deposed Trooper Bandy on November 29, 2004, the day before the cutoff for discovery. D.C.Colo.L.Civ.R. 16.1 provides that the Scheduling Order shall not be modified except upon showing of "good cause." Good cause to modify a Scheduling Order exists where the party seeking to amend its pleading establishes that despite diligence it could not reasonably meet the deadline to amend pleadings under the case schedule. Marcum v. Zimmer, 163 FRD 205, 254 (S.D.W.Va. 1995) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). Here, the Plaintiffs have failed to show that good cause exists to modify a Scheduling Order to allow them to amend their pleadings. The record shows that the Plaintiffs took no action in this case until the very end of discovery. Moreover, at no time did the Plaintiffs seek an extension of the deadline to amend pleadings in this matter, including extension to possibly include a claim for exemplary damages. In short, it was Plaintiffs own dilatory actions that resulted in their failure to timely seek leave to amend. Furthermore, Plaintiffs' own Motion for Leave to Amend makes clear that Plaintiffs were contemplating a punitive damages claim as early as April 8, 2003. See page 9 of Plaintiffs' Motion for Leave to Amend setting forth a portion of a letter from Plaintiffs' attorney to Jackie Adamson setting forth evidence that Plaintiffs contend constitute of willful and wanton conduct on the part of

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George's Towing which would entitle them to punitive damages. Despite this fact, at no time did Plaintiffs ever ask for leave to amend the Scheduling Order prior to the deadline to amend pleadings. Even more troubling is the fact that Plaintiffs now allege that they acquired this evidence during the course of Rosler's and Bandy's depositions taken in November of 2004 and yet are here before this Court in October of 2005, almost a year later, now asking to amend the pleadings to include such a claim. Plaintiffs offer absolutely no viable explanation as to why they have waited a year after allegedly obtaining this evidence to ask the court to allow them to amend the Complaint to include such a claim. Finally, discovery is now over in this matter. Motions for Summary Judgment have now been filed and await ruling by the court. Had Plaintiffs timely filed a Motion for Leave to Amend the Complaint to include a claim for exemplary damages, Defendants would have addressed such claims in their Motion for Summary Judgment. Now, however, Defendants are put in a position of not being able to address such claims should the court allow such amendment. Because the Plaintiffs have not shown good cause as to why the Scheduling Order herein shall be modified, Defendants respectfully request that this Court deny their Motion for Leave to Amend their Complaint to include a claim for exemplary damages. PLAINTIFFS' ATTEMPT TO ADD A CLAIM FOR EXEMPLARY DAMAGES UNDER COLORADO LAW IS DUPLICITOUS AND DISINGENUOUS WHEN PLAINTIFFS HAVE ARGUED IN OTHER PLEADINGS THAT WASHINGTON LAW APPLIES TO THE DAMAGES IN THIS CASE AND WASHINGTON LAW DOES NOT RECOGNIZE A CLAIM FOR PUNITIVE DAMAGES In the Scheduling Order entered herein, Plaintiffs claimed that: Under applicable choice of law provisions, Washington law will apply to the computation of damages in this case for reasons 7

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including but not limited to: driver Mr. Morozov was a resident of Washington state, and his estate, widow and children reside in Washington; Mr. Bugaychuk's dependents, Yelena Bugaychuk and Natalia Melnik, reside in Washington state; the estates of both Mr. Morozov and Mr. Bugaychuk will be administered in Washington state; and no dependent has any connection to Colorado state. See Section 4, Computation of Damages Scheduling Order. Furthermore, in their Response to Defendants' Motion for Summary Judgment Plaintiffs argue at length that Washington law should apply to the damages in this case. Instead, Plaintiffs ask this Court to apply the concept of "depecage" where the process of applying rules of different states on the basis of the precise issue involved. However, Plaintiffs fail to cite any Colorado law which recognizes such a concept. PLAINTIFFS' MOTION FOR LEAVE TO AMEND IS FUTILE BECAUSE DEFENDANTS OWED NO DUTY TO ANGEL EXPRESS OR THE PLAINTIFFS If a plaintiff has unduly delayed seeking amendment and delay is "accompanied by a prejudice, bad faith or futility, amendment should be denied." Smith v. United Parcel Serv, Inc., 902 F. Supp. 719, 721 (S.D.W.Va. 1995). Here, Plaintiffs attempt to amend their Complaint to include a claim for exemplary damages would be futile in that these Defendants owed no duty to the decedents. To recover on a claim of negligence, a plaintiff must establish the existence of a legal duty on the defendant's part, defendant's breach of the duty, causation, and damages. See, Davenport v. Community Corrections of Pikes Peak Region, Inc., 962 P.2d 963 (Colo. 1998). A negligence claim, therefore, must fail if based upon circumstances for which the law imposes no duty of care upon the defendant. See, Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). The initial determination of whether defendant owes a duty to the plaintiff as well as the scope of that duty 8

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is a question of law for the court. Bath Excavating and Construction Co. v. Wills, 847 P.2d 1141, 1142 (Colo. 1993). If a court determines that the defendant owed the plaintiff a legal duty, the question of whether the defendant has breached that duty and thereby caused the plaintiff damages is for the jury. See, Perreira v. State, 768 P.2d 1198 (Colo. 1989). In determining whether defendant owes a duty to a particular plaintiff, the law distinguishes between acting and failure to act, that is, misfeasance, which is active misconduct that injures others and nonfeasance, which is failure to take positive steps to protect others from harm. University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987). The reason for this distinction is that a misfeasant creates a risk of harm; while the nonfeasant, although not creating a risk of harm, merely fails to benefit the injured party by interfering in his or her affairs. See, Perreira v. State, supra. Thus, because in misfeasance the actor has created a new risk, and in nonfeasance the actor has simply preserved the status quo, the situations in which nonfeasance leads to liability are more circumscribed than those for misfeasance. See, Lego v. Schmidt, 805 P.2d 1119 (Colo. App. 1990); Schmidt v. Darwin Anderson; 72 P.3d 369, 372 (Colo. App. 2002). The courts therefore apply different tests to establish whether a defendant owed a duty to the injured party depending upon whether the alleged negligence is misfeasance or nonfeasance. See, Lewis v. Emile Clayton Plumbing Co., 25 P.3d 1254 (Colo. App. 2000); Schmidt, supra at 372. In nonfeasance cases, the existence of a duty has been recognized only in a limited number of special relationships between the parties such that social policy justifies the imposition of a duty to act. See, University of Denver v. Whitlock, supra; Lewis v. Emile Clayton Plumbing Co., supra. Hence, there exists a duty to control the conduct of a third person to prevent him

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from causing physical harm to another only if a special relationship exists between the nonfeasant and either the wrongdoer or the victim. Schmidt, supra at 372. While Colorado has not recognized the relationship between a towtruck driver and a vehicle that had previously been towed and/or a victim who strikes such a vehicle as a special relationship, Colorado courts have rejected imposing "special relationship status on those relationships where the nonfeasant lacks control over the other parties." Community Corrections of Pikes Peak Region, Inc., supra, the court held: Whether a special relationship exists between Pikes Peak and Rutledge depends, in large part upon the level of control exercised by Pikes Peak over its residents. See, Perreira, 768 P.2d at 121516; see also, Restatement (2nd) Torts § 319 (1965). Although Pikes Peak serves a custodial role and has a contractual obligation to closely monitor the activities of its residents, Pikes Peak exerts far less control over its residents than a prison. Pikes Peak residents maintain fulltime employment, provide their own transportation, and readily obtain curfew, weekend, church, overnight, and furlough passes. Thus, offenders housed at Pikes Peak spend a substantial amount of time off the premises without direct supervision. We are therefore persuaded that the level of control exerted by Pikes Peak over Rutledge is insufficient to establish a special relationship in this case. (Citations in original). 962 P.2d at 969. While legal research reveals no other court in any state which has held that a special relationship exists between a towtruck driver and a vehicle which he had previously towed and/or a person who ran into the back of a vehicle previously towed, the case of Mikillian v. City of Los Angeles, 79 Cal. App. 3rd 150, 144 Cal. Rpt. 794 (1978) is analogous. In Mikillian, a towtruck driver had filed suit against the defendant Police and City for injuries he sustained when struck by a vehicle while attempting to tow a vehicle. There, the plaintiff attempted to argue that the police officer had instructed him to park his tow vehicle in a certain location and 10 In Davenport v.

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that the officer had a duty to place warning triangles or other warning devices behind his tow vehicle. The trial court directed a verdict for defendants from which the towtruck driver

appealed. The appellate court first noted that the plaintiff's trial testimony wherein he had claimed he had been instructed by police as to where to park, had been contradicted by his own earlier prior inconsistent statements. As a result, the appellate court held that he had not

presented any issue of fact in this regard. Id. 79 Cal. App. at 158. Then, turning to the issue of duty the court stated: Every negligence case presents a threshold question of whether the defendant has violated any duty to the plaintiff. Unless plaintiff can show such a duty and a violation thereof by substantial evidence, it is the duty of the trial court to grant defendant's Motion for Nonsuit. . . Plaintiff was injured in this case allegedly as the result of an omission (the failure of officers to place flares for his protection). Such an omission is nonfeasance and 'liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. . .' As this court said in Mann v. State of California, a defendant can be held liable for those negligent omissions only if a special relationship then obtained between him and plaintiff. . . The keystone of plaintiff's claim of a special relationship was his assertion that the officers directed him to take the towtruck and impounded vehicle across Vineland and park them on the east side where they were in blind spot for northbound traffic. The inventory report had not been completed by the officers and signed by plaintiff. Pursuant to the rules governing official police garages of the Los Angeles Police Commission, plaintiff was required to 'abide by the decisions of police officers and . . .cooperate in removing hazards, illegally parked vehicles, and impounding vehicles.' If the officers had directed plaintiff where to park until the paperwork was completed, the exercise of such control would have placed him in a position of dependence upon the officers. At trial, plaintiff testified three times that he was directed where to park. However, in his deposition he unequivocably stated that 11

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no one directed him to park on the east side of Vineland and that the decision to park there was his own, dictated by the greater ease of this maneuver. These unequivocal statements in his deposition were confirmed by his trial testimony that it was his and not the officers' decision to move the vehicles to the east curb of Vineland. Even on redirect examination when offered the opportunity to reconcile or explain his prior statements by stating his understanding as to what he was to do, plaintiff answered, '[get] it out of the water and get it to an area that was dry' and made no reference to any alleged directive that he was to park on the east side of Vineland. Id. at 159-160. (citations omitted). The court in Mikillian, went on to hold: We conclude on the basis of the foregoing authorities that there was no substantial evidence supporting plaintiff's claim that he was directed to park on the east side of Vineland and that the only finding that a reasonable trier of fact could make in that respect was that it was plaintiff's own decision for his own convenience to park in that location. Such being the case there was nothing left upon which to base plaintiff's claim of duty except the facts that plaintiff was called upon to remain somewhere in the vicinity of the original accident to sign off on an inventory report and that two of the officers present were aware of the fact that he had parked on the east side of Vineland. These facts did not give rise to a special relationship sufficient to impose a duty upon the officers to place flares warning northbound traffic on Vineland. Id. at 163. Here, Plaintiffs have failed to produce any evidence to support that the Angel Express driver was dependent upon Rosler for putting out the warning devices. Indeed, the Angel Express truck had its own warning flashers on at the time of the accident and presumably also carried the same warning devices as required by law. Nor have Plaintiffs provided any evidence whatsoever that the Angel Express driver was directed by or forced by Rosler to park where he did on the exit ramp. In short, Plaintiffs have failed to show that there was a special relationship

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between Rosler and the Angel Express driver and that such a duty extended to the Plaintiffs herein. The undisputed fact remains that Morozov's vehicle ran into the back of the Angel Express truck and not George and Sons' Towing vehicle. The Angel Express driver made his own independent decision as to where to place his vehicle near the exit ramp. Moreover, he had his own separate duty to place the warning triangles behind his vehicle. Because Plaintiffs failed to show that these Defendants owed any duty to Angel Express or to the Plaintiffs, Plaintiffs' Motion to Amend would be futile. Accordingly, their Motion to Amend should be denied. PLAINTIFFS' MOTION FOR LEAVE TO AMEND IS FUTILE BECAUSE PLAINTIFFS HAVE FAILED TO SHOW THAT DEFENDANTS' ACTIONS ROSE TO THE LEVEL OF CONDUCT NECESSARY FOR EXEMPLARY DAMAGES In their Motion for Leave to Amend, Plaintiffs allege that Defendants' conduct was willful and wanton and/or in reckless disregard for the rights and safety of others thereby establishing a prima facia case sufficient to seek an award of exemplary damages. The Colorado Supreme Court has held that "willful and wanton misconduct" connotes acts or omissions that extend beyond mere unreasonableness. See, Terror Mining Company, Inc. et al. v. Roter, 866 P.2d 929, 933 (Colo. 1994). Indeed, the Defendants' conduct must go beyond mere

unreasonableness; it must be "purposeful" and committed without regard to safety. Id. at 934. See, also, Steeves v. Smiley, 354 P.2d 1011, 1014 (1960) (concluding that where defendant pursues a highly hazardous course with a knowledge that tragic consequences are highly probable, defendant's conduct is reckless or wanton, and not really negligent or careless); Pettingell v. Moede, 271 P.2d 1038 (1954) (holding ordinary or simple negligence should be considered as resulting from a passive mind, while a willful and wanton disregard is the result of

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an active and purposeful intent); Millington v. Hiedloff, 45 P.2d 937 (1935) (recognizing that negligence has in it no element of willfulness, but involves a states of mind in which the person fails to give attention to the character of his acts or omissions or to weigh their consequences; in comparison, willful acts and omissions are conscious acts, the possible consequences of which are considered at present in the mind); Section 13-21-102(1)(b), 6A C.R.S. (2005) (establishing that willful and wanton conduct, for purposes of awarding exemplary damages, "means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly without regard to the consequences or of the rights and safety of others"). Here, it is undisputed that at the time of the incident the two trucks moved under their own power to the exit ramp and stopped, not in the two through lanes of I-70, but rather as far right as possible in the exit lane. Furthermore, at the time of the accident the visibility was clear. In fact, Trooper Bandy testified that he had passed the two trucks stopped in the far right of the exit lane just minutes before the accident, had no problem seeing them as he approached from behind, and did not take exception to their position on the exit lane. It is also undisputed that both trucks had their flashers on at the time of the incident. Given the fact that the visibility was clear and the trucks were parked well off to the side of the road, there is no reason that these Defendants would have expected decedent Morozov to run into the back of the Angel Express truck. Even more importantly as set forth above, these Defendants had no duty to place warning devices behind the Angel Express truck. There was no special relationship between these Defendants and Angel Express which would have imposed a duty on Rosler to set out warning devices behind the Angel Express truck. Nor did Rosler ever assume such duty or tell the Angel

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Express driver that he would do so. In short, Plaintiffs have failed to establish that Rosler's conduct was willful and wanton or in reckless disregard to the rights and safety of others in this case. Because Plaintiffs have failed to establish a prima facia case of conduct entitling them to pursue a claim for exemplary damages, such amendment would be futile. Therefore, this Court should deny Plaintiffs' Motion for Leave to Amend their Complaint to add a claim for exemplary damages. CONCLUSION Because Plaintiffs have failed to timely seek leave to amend their Complaint to include a claim for exemplary damages, their Motion for Leave to Amend should be denied. Furthermore, because any such amendment would be futile in that Defendants owe no duty to the Plaintiffs, and because Plaintiffs have filed to establish a prima facia case of conduct warranting a claim for exemplary damages, Plaintiffs' Motion for Leave to Amend should also be denied on those grounds. Dated this 21st day of October 2005. Respectfully submitted, /s Andrew J. Carafelli Andrew J. Carafelli HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 21st day of October 2005, I electronically filed the foregoing DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Komron M. Allahyari, Esq. Washington Law Group 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 E-mail: [email protected]

s/Leslie E Grauberger, Secretary Andrew J. Carafelli, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 303-293-3231 ­ Fax [email protected] ATTORNEYS FOR DEFENDANTS

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